# C_2007297EN.01002002.xml

| 8.12.2007 | EN | Official Journal of the European Union | C 297/20 |
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8.12.2007

EN

Official Journal of the European Union

C 297/20

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Reference for a preliminary ruling from Court of Appeal (Civil Division) (England and Wales) made on 13 September 2007 — Meletis Apostolides v David Charles Orams, Linda Elizabeth Orams

(Case C-420/07)

(2007/C 297/34)

Language of the case: English

Referring court

Court of Appeal (Civil Division) (England and Wales)

Parties to the main proceedings

Applicant: Meletis Apostolides

Applicant:

Defendants: David Charles Orams, Linda Elizabeth Orams

Defendants:

Questions referred

| 1. | In this question,






  — | the term ‘the Government-controlled area’ refers to the area of the Republic of Cyprus over which the Government of the Republic of Cyprus exercises effective control; and |
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1.

In this question,

—

the term ‘the Government-controlled area’ refers to the area of the Republic of Cyprus over which the Government of the Republic of Cyprus exercises effective control; and

| — | the term ‘the northern area’ refers to the area of the Republic of Cyprus over which the Government of the Republic of Cyprus does not exercise effective control. |
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the term ‘the northern area’ refers to the area of the Republic of Cyprus over which the Government of the Republic of Cyprus does not exercise effective control.

Does the suspension of the application of the acquis communautaire in the northern area by Article 1(1) of Protocol No 10 of the Act of Accession 2003 of Cyprus to the EU preclude a Member State Court from recognising and enforcing a judgment given by a Court of the Republic of Cyprus sitting in the Government-controlled area relating to land in the northern area, when such recognition and enforcement is sought under Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) (‘Regulation 44/2001’), which is part of the acquis communautaire?

acquis communautaire

1

acquis communautaire

| 2. | Does Article 35(1) of Regulation 44/2001 entitle or bind a Member State court to refuse recognition and enforcement of a judgment given by the Courts of another Member State concerning land in an area of the latter Member State over which the Government of that Member State does not exercise effective control? In particular, does such a judgment conflict with Article 22 of Regulation 44/2001? |
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2.

Does Article 35(1) of Regulation 44/2001 entitle or bind a Member State court to refuse recognition and enforcement of a judgment given by the Courts of another Member State concerning land in an area of the latter Member State over which the Government of that Member State does not exercise effective control? In particular, does such a judgment conflict with Article 22 of Regulation 44/2001?

| 3. | Can a judgment of a Member State court, sitting in an area of that State over which the Government of that State does exercise effective control, in respect of land in that State in an area over which the Government of that State does not exercise effective control, be denied recognition or enforcement under Article 34(1) of Regulation 44/2001 on the grounds that as a practical matter the judgment cannot be enforced where the land is situated, although the judgment is enforceable in the Government-controlled area of the Member State? |
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3.

Can a judgment of a Member State court, sitting in an area of that State over which the Government of that State does exercise effective control, in respect of land in that State in an area over which the Government of that State does not exercise effective control, be denied recognition or enforcement under Article 34(1) of Regulation 44/2001 on the grounds that as a practical matter the judgment cannot be enforced where the land is situated, although the judgment is enforceable in the Government-controlled area of the Member State?

| 4. | Where






  — | a default judgment has been entered against a defendant; |
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4.

Where

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a default judgment has been entered against a defendant;

| — | the defendant then commenced proceedings in the Court of origin to challenge the default judgment; but |
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the defendant then commenced proceedings in the Court of origin to challenge the default judgment; but

| — | his application was unsuccessful following a full and fair hearing on the ground that he had failed to show any arguable defence (which is necessary under national law before such a judgment can be set aside), |
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his application was unsuccessful following a full and fair hearing on the ground that he had failed to show any arguable defence (which is necessary under national law before such a judgment can be set aside),

can that defendant resist enforcement of the original default judgment or the judgment on the application to set aside under Article 34(2) of Regulation 44/2001, on the ground that he was not served with the document which instituted the proceedings in sufficient time and in such a way as to enable him to arrange for his defence prior to the entry of the original default judgment? Does it make a difference if the hearing entailed only consideration of the defendant's defence to the claim.

| 5. | In applying the test in Article 34(2) of Regulation 44/2001 of whether the defendant was ‘served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence’ what factors are relevant to the assessment? In particular:






  (a) | Where service in fact brought the document to the attention of the defendant, is it relevant to consider the actions (or inactions) of the defendant or his lawyers after service took place? |
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5.

In applying the test in Article 34(2) of Regulation 44/2001 of whether the defendant was ‘served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence’ what factors are relevant to the assessment? In particular:

‘served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence’

(a)

Where service in fact brought the document to the attention of the defendant, is it relevant to consider the actions (or inactions) of the defendant or his lawyers after service took place?

| (b) | What if any relevance would particular conduct of, or difficulties experienced by, the defendant or his lawyers have? |
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(b)

What if any relevance would particular conduct of, or difficulties experienced by, the defendant or his lawyers have?

| (c) | Is it relevant that the defendant's lawyer could have entered an appearance before judgment in default was entered? |
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(c)

Is it relevant that the defendant's lawyer could have entered an appearance before judgment in default was entered?

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(1)  OJ L 12, p. 1.

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